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Carroll: The threat hanging over Colorado's Amendment 66

State Sen. Michael Johnston, who supports Amendment 66 (a $950 million tax increase for public schools), was a leading sponsor of Senate Bill 191. (Craig F. Walker, The Denver Post)

The Colorado Education Association is a big supporter of Amendment 66, which would raise income taxes by $950 million for schools. The investment, the CEA says, is needed "to give students the skills and tools they need to compete for jobs, achieve their potential and to make a better life."

What the CEA probably won't be telling voters over the next few weeks is that after the election is over, it could file a lawsuit seeking to undermine a critical element of the reformist agenda approved by lawmakers in recent years — an agenda the amendment aims to strengthen.

Indeed, more than $350 million of new revenue is supposed to boost implementation of education reforms. However, thanks to an agreement approved last month by the State Board of Education, the CEA and Denver Classroom Teachers Association (DCTA) now have until February to challenge a key reform. In other words, they are free to promote the amendment with their ample resources and then, should it pass, strike at its goals.

What both of those organizations ought to do, in fairness to voters and to Amendment 66, is pledge right now that they will not file suit. Either they support Amendment 66 or they don't. After all, the sponsors of 66 have insisted from the outset, in evident sincerity, that they were not interested simply in pouring more money into the system but rather in using it to leverage change and address inequities.

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The radioactive reform involves teacher tenure. Senate Bill 191, passed in 2010, ended the outrageous practice of "forced placement," under which tenured teachers were all but guaranteed jobs even when schools didn't want them. What's worse, those teachers in Denver typically were reassigned to the most troubled schools.

Once given a green light to end forced placement, Denver superintendent Tom Boasberg pounced. "I believe the practice is wrong," he declared.

The new law imposed the perfectly reasonable standard of "mutual consent." That is, positions would be filled only upon agreement of teacher and principal — a standard that gave principals the same authority most other employers already enjoy.

Alas, the CEA and DCTA have never been reconciled to mutual consent. And in Denver, the issue not only went to non-binding arbitration, the arbitrator last year also voiced the alarming conclusion that the law is unconstitutional because it deprives tenured teachers of a vested contractual and property right.

Is that opinion correct? Is it conceivable that the same legislature that created tenure privileges cannot at a later date restrict them? Some public employees have made a similar argument about pensions: that lawmakers can ratchet up retirement benefits for existing workers but never roll them back.

Officials I've spoken to who've followed this issue differ on how a lawsuit would fare in court, with some convinced that the arbitrator is wrong. But a lawsuit would obviously not be frivolous from a legal standpoint.

It's important to emphasize that neither the State Board of Education nor the authors of Amendment 66 were complicit in any chicanery. In extending the deadline on litigation, the board was trying to preserve the 2010 law, which is only being fully implemented this fall, by giving it time to gain traction.

And the lawmaker most closely identified with Amendment 66, Sen. Michael Johnston, D-Denver, was also a leading sponsor of SB 191. He told me he's more committed than ever to defending those reforms.

So is Boasberg. "It's critically important for our schools to be able to hire the best teachers," he told me. "Forced placement was harmful for students, schools, and teachers and was particularly inequitable for our kids in poverty. ... We do not want to go back to those days."

Not all kids who play baseball are uniformed with fancy script across their chests, traveling to $1,000 instructional camps and drilled how to properly hit the cut-off man. Some kids just play to play.